Judgment:
(Prayer: This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 5.12.2011 passed in O.S.No.88/2007 on the file of the I Additional Senior Civil Judge at Bijapur, partly decreeing the suit of the plaintiff.)
Anand Byrareddy, J.
1. These appeals are heard and disposed of by this common judgment as the appeals arise out of the same suit.
2. The appeal in RFA 6001/2012 is filed by the plaintiffs. The facts as asserted by the plaintiffs was that the suit properties were their joint family properties. It was claimed that land bearing survey no.794/1+2+3 of Sarwad village, described at Item no.4 of the suit Schedule- A, was ancestral property and the remaining items of land were purchased overtime in the name of the father of the fourth defendant and the father of the plaintiffs, Mahalingappa, who was no more.
The genealogical tree of the family is as under:
GENEALOGY
( CHART )
= Respondent No.8/defendant No.11 stranger to the family impleaded himself as defendant No.11.
The first plaintiff is said to be living with his wife at Bijapur since a few years prior to the suit. The second plaintiff was said to be employed in a workshop at Bangalore and was said to be living there with his wife and children.
The first plaintiff was said to have borrowed loans for his family necessities and was said to be in dire financial straits. He was said to be in requirement of more funds to educate his children and other essential purposes.
The second plaintiff was also said to be in need of funds to expand his business. The plaintiffs are thus said to have sought for partition of the suit properties. Defendants 2 to 5 are said to have denied any such right to seek partition, on the footing that it was their individual property, apparently taking advantage of the fact that the several items of lands stood in the name of one or the other defendant.
It was claimed that one item of land, namely, land bearing survey no.652/2 of Mahalbagayat was shown to be standing in the name of defendant no.10. It was alleged that her name had been fraudulently entered in the mutation register. And that she was made a party to the suit by way of abundant caution.
It was stated that defendants no.6 to 9 were the married sisters of the plaintiffs and they had relinquished their share in the property in favour of the plaintiffs and defendants 1 to 4.
It transpires that defendant no.1 died during the pendency of the suit. Defendant no.2 had not chosen to file any written statement. Defendant no.4 and Defendant no.6 are said to have filed separate written statements and counter claims. Defendants 3 and 5 are said to have adopted the written statement of defendant no.4. Defendants 7 to 9 are said to have adopted the written statement of defendant no. 6.
In the written statements, which were said to be almost identical, the claim of the plaintiffs was said to have been admitted. Defendant no. 4 had in his counter claim staked claim to a 1/12th share in the suit properties. Defendant no.6 had staked a claim to 1/20th share in the suit properties.
Defendant no.10 is said to have filed a detailed written statement. However, the plaintiffs had filed an application seeking her deletion from the array of parties, which had been allowed and she was accordingly deleted as a party to the suit.
Defendant no.11, a third party, had sought to implead himself and the said application had been allowed after contest. It was defendant no. 11 who has contested the suit. It was alleged by him that the suit was a collusive one. It was denied that there was a joint family or that the suit properties were joint family properties. While seeking to furnish the details of acquisition of the several items of the suit properties, the said defendant had particularly contended that land bearing survey no. 652/2 of Mahalbagayath, Bijapur, was purchased by defendant no. 2 in his individual capacity as evident from the recitals in the sale deed pertaining to the property and that the said defendant had entered into an agreement of sale in respect of the same with defendant no.11. Since defendant no.2 had not completed the sale transaction, a suit for specific performance of contract was said to have been instituted by defendant no.11 in OS 178/2006 on the file of the Court of Civil Judge, Senior Division, Bijapur. It was hence contended that in order to avoid the said agreement of sale, the present suit for partition was instituted. It was asserted that the plaintiffs and defendants 1 to 10 had colluded in bringing the suit for partition, while deliberately suppressing the subsisting agreement of sale and the suit for specific performance instituted by defendant no. 11. It was only on an application under Order I Rule 10 (2) of the Code of Civil Procedure, 1908, that the said defendant has been impleaded.
On the basis of the above pleadings, the court below had framed the following issues:
1. Whether the plaintiffs prove that the suit property bearing Sy.No.652/2 measuring 4 acres 5 guntas is joint family property consisting of plaintiffs and defendant Nos. 1 to 9?
2. Whether the defendant Nos.1 to 9 prove that the suit property bearing Sy.No.652/2 measuring 4 acres 5 guntas is joint family property consisting of them and plaintiffs?
3. Whether the defendant No.10 proves that she is the lawful owner of southern portion of 2 acres 2 guntas out of RS No.652/2 by virtue of registered sale deed executed by previous owner Yallavva W/o. Malasiddappa Tolanur on 10.5.2005 for the valid consideration of Rs.2,85,000/-?
4. Whether the defendant No.10 proves that since the date of sale deed 10.5.2005 she is in actual possession and enjoyment of the said southern portion of 2 acres 2 guntas out of the said suit land bearing RS No.652/2?
5. Whether the plaintiffs 1 and 2 prove that they are entitled for 1/12th share each out of half share in the suit properties?
6. Whether the plaintiff No.2 proves that, he has got half share in the suit properties?
7. Whether the defendant No.4 proves that he is entitled for 1/6th share in the suit properties?
8. Whether the defendant Nos.1, 3, 4 and 5 prove that they are entitled for their due share in the suit properties?
9. Whether the defendant No.5 proves that he is entitled for his alleged due share in the suit properties?
10. Whether the defendant Nos.6 to 9 proves that they are entitled for their alleged due share in the suit properties?
11. Whether the court fee paid by the plaintiffs is proper and correct?
12. Whether the suit is bad for non-joinder of necessary party to this proceeding?
13. What order or decree?
Additional Issue No.1
Whether defendant No.11 proves that he is having interest over suit properties?
The trial court has answered Issues no.5, 8 and the Additional Issue no.1, partly in the affirmative and the remaining issues are either held to be redundant or answered in the negative. It was held that the plaintiffs and defendants no.2 to 4 were entitled for 1/5th share each, out of the half share in Schedule A to C and E properties only. The suit was dismissed in respect of Schedule-D property.
The plaintiffs have hence filed the present appeal.
3. The appeal in RFA 6010/2012 is filed by defendants no.3, 4 and 5, who are similarly aggrieved as the plaintiffs.
4. The appeal in RFA 6011/2012 is filed by Defendants no. 6 to 9, who are held not entitled to any share in the joint family properties.
5. The appeal in RFA 6012/2012 is filed by Defendant no. 2, as it was held that he had entered into an agreement of sale in respect of suit Schedule-D property and that it was not part of the joint family properties.
6. Shri Ashok B.Patil, appearing for the appellants in RFA 6001/2012 and RFA 6010/2012, while reiterating the pleadings points out that the joint family consisted of the plaintiffs and defendants 1 to 9 and the properties consisted of 7 items of lands and 6 houses and vacant sites.
That defendant no.10 was a stranger to the family. She was made a party as she had at a point of time made a claim in respect of suit Schedule-D property, namely Survey no. 652/2, Mahalbhagayat village, Bijapur District, to an extent of 2 acres and 2 guntas out of 4 acres and 5 guntas.
That defendant no.11 was impleaded in the suit on the footing that defendant no.2 had executed an agreement to sell the suit Schedule-D property, dated 6.4.1998, and that the said property was the self acquired property of Defendant no.2.
It is contended that the said suit Schedule-D property was purchased in the name of the second defendant, under a sale deed dated 15.12.1979, by the joint family - then consisting of Mahalingappa, the father of the plaintiffs and their paternal uncle, Shivappa. The vendor was said to be one Basappa, son of Rayappa Tadalgi. Mahadev, the son of Basappa, is said to have filed a suit for partition, in OS 173/1983, for partition and separate possession of his alleged share in the said land bearing Sy.no.652/2. The said suit was said to have been dismissed on 27.6.1987. An appeal preferred against that judgment in RA 108/1990 was also said to have been dismissed as on 7.11.1995. A second appeal before this court in RSA 1505/1995 was also said to have been dismissed on 30.8.2004. It had attained finality by the dismissal of a Special Leave petition before the Supreme court, having been dismissed on 6.1.2005.
During the pendency of the above appeal in RSA 1505/1995, the legal representative of Mahadev, who had died by then and his legal representative who was prosecuting the appeal, is said to have executed a sale deed in respect of a portion of the land which was the subject matter of the lis, to one Preeti Patil, Defendant no.10 in the present suit. She is said to have obtained a change of mutation entries in her favour in respect of that portion of the land said to have been purchased. That change in mutation entry had been challenged in a writ petition before this court in its writ jurisdiction, in WP 83002/2009, by defendant no. 2. The said writ petition was said to have been allowed and the same was affirmed in an appeal in WA 10088/2001 and attained finality by the dismissal of a Special Leave Petition filed before the Supreme Court. It is in that background that defendant was deleted from the array of parties.
Incidentally, it is claimed that the said defendant is closely related to defendant no.11. It is claimed that he has been set up by the said erstwhile defendant, Preeti Patil.
In so far as the claim of defendant no. 11 is concerned, it is contended that the agreement to sell dated 6.4.1998, set up by him, is dismissed as a concocted document. It is pointed out that defendant no.11 in his cross-examination had admitted the status and holding of the joint family of the plaintiffs. The document itself, it is contended, is unnaturally structured in as much as the signatures of defendant no.2 were obviously obtained prior to the document being written. This is evident from a plain perusal of the same.
It is contended that the trial court has held that except suit schedule-D property. The reason afforded by the trial court was that - a declaration was submitted by the kartha of the family, Mahalingappa - before the Land Tribunal, under the provisions of the Karnataka Land Reforms Act, 1961, as per Exhibit-D57. The said document according to the trial court, resulted in severance of status of the joint family in view of the numerical division of the properties, vis- -vis the number of members in the joint family of Mahalingappa and Shivappa. Shivappa had no children. However, it is pointed out that according to the following chart showing the date of acquisition of each of the items of the suit properties, it may be seen that two of the items have been acquired after the date of the declaration.
| Sl. No. | Exhibits | Survey No. | Extent A-G | Date of Sale | Consideration Amount | Name of the parties | Situated |
| 1. | Ex.D26 | 592 | 11-14 | 21.05.1970 | 18500.00 | Mahalingappa and D5 | Babaleshwar |
| 2. | Ex.D26 | 591 | 22-44 | 21.05.1970 | 56500.00 | Mahalingappa and D5 | Babaleshwar |
| 3. | Ex.D14 | 178 | 17-37 | 05.04.1966 | 7200.00 | Mahalingappa | Sarwad |
| 4. | Ex.D30 | 652/2 | 04-05 | 15.12.1979 | 21000.00 | Defendant No.2 | Mahalbaghayat |
| 5. | Ex.D11 and 12 | 88/4 | 09-22 | 29.06.1998 | 100500.00 100000.00 | Defendant No.4 | Sarwad |
| 6. | Ex.D18 | 678 | 18-27 | 31.10.2003 | 264000.00 | Defendant No.4 | Sarwad |
2) The trial court holds all other properties which are purchased before 1979 and after 1979 in the name of different person as joint family property, except land Sy. No.652/2 measuring 04 acreas 05 guntas which are standing in the name of defendant No.2. That as on the date of purchase, the defendant No.2 was aged about 24 years and he has no source of income for purchasing the said land. The said land is purchased out of the joint family income.
They are held to be joint family properties. Hence it is inexplicable that suit schedule-D property alone is held to be the self acquired property of Defendant no.2. Thereby accepting the claim of defendant no. 11. There was no claim by any of the parties as to there having been a severance of status. The finding of the trial court is thus stated to be perverse and without basis.
It is contended that the female members of the joint family, namely, defendants no. 6 to 9, are concerned, the court below has held that they had not chosen to tender evidence in support of their claim to a share in the suit properties and hence have been denied a share. It is pointed out that the father of the plaintiffs and the said defendants died in the year 2007, after the coming into force of the amendment to Section 6 of the Hindu Succession Act, 1956, and hence the said female members would share equally with the sons.
7. On the other hand, the counsel appearing on behalf of defendant no. 11, Shri Ananth Jagirdhar, would contend that none of the suit properties could be treated as ancestral properties. It is asserted that the land in RS no.794/1+2+3 measuring 13 acres 28 guntas of Sarwad village, Bijapur Taluk, had been purchased by Malkappa under a registered sale deed dated 10.1.1938, which is shown as one of the items of suit Schedule-A properties. Malakappa had died on 16.5.1942 leaving behind his sons Mahalingappa and Shivappa, who succeeded to the self acquired property of Malkappa. It is contended that sons who inherit the self acquired property of their father, take it as their separate property. It can neither be considered as ancestral property or joint family property by grand sons who were not born at the time the succession opened. Reliance is placed on the commentary on Hindu Law by Mulla, 22nd Edition.
It is further contended that acquisitions made by Mahalingappa and Shivappa, as shown in Exhibit D-57, out of the income derived from self acquired property, succeeded to by them can only be construed as their joint property and not joint family property. They would succeed to the property as tenants-in-common. Reliance is placed on P.Periasami v. Periathambi, (1995) 6 SCC 523.
It is contended that a similar view is taken in Makhan Singh vs. Kulwant Singh, AIR 2007 SC 1808.
Apart from the land in RS No.794/1+2+3 of Sarwad village to which Mahalingappa and Shivappa had succeeded as tenants- in-common, the land bearing RS no. 178 of the same village had also been purchased by Mahalingappa under a registered sale deed dated 5.4.1966. Similarly the land in RS no.591 and 592 of Bableshwar village was purchased jointly by Mahalingappa and Shivappa under a sale deed dated 21.5.1970. The land in RS no.17 of Kanamuchanal village was admittedly tenanted and cultivated by Mahalingappa and Shivappa, in their individual capacity.
The land in RS No.88/4 of Sarwad village acquired in the name of defendant no.4 by Mahalingappa and Shivappa, would be his self acquired property. Similarly, the land bearing RS no.652/2 purchased in the name of Defendant no.2 would also be his self acquired property.
It is contended that the burden of proof as to the suit properties being the joint family properties was on the plaintiffs in a suit for partition. Hence the plaintiffs were to prove the existence of ancestral property. The plaintiffs had not inherited any property from their grand father. There was hence no nucleus in existence - to provide the funds to acquire other properties for and on behalf of the family.
8. By way of reply, Shri Ashok Patil, would contend that the application of Section 8 of the HS Act as regards the rule of succession in respect of a male Hindu dying intestate- is relevant only post 1956. The Supreme court has, in the above decisions cited by Shri Jagirdhar, addressed circumstances emanating subsequent to the year 1956 and not earlier. And the learned counsel has placed reliance on a large number of decisions to assert that the suit properties are indeed joint family properties.
9. On a consideration of the above contentions and on examination of the record, the points that arise for our consideration in these appeals are :
(a) Whether the suit properties could be claimed as the joint family properties of the plaintiffs and defendants 2 to 9?
(b) Whether the item of property bearing RS no. 652/2, agreed to be sold by Defendant no.2 to Defendant no. 11, was the self acquired property of the said defendant no. 2?
(c) Whether defendants 6 to 9 are entitled to a share in the suit properties.?
Though the trial court had opined that there was no issue between the plaintiffs and defendants - 2 to 9 as to the suit properties being joint family properties available for partition, it was at the instance of Defendant no.11, whose interest was only to the extent of the item of land which was the subject matter of an agreement of sale dated 6.4.1998, said to have been executed by Defendant no.2 in favour of Defendant no. 11, that the question has been incidentally addressed. As there is ambiguity in the findings of the trial court as to the nature of the lands and as to the presumptions that would arise if one should proceed on certain legal assumptions, it is necessary to clarify the legal position, which would also assist in arriving at conclusions on the other points framed for consideration, by us.
It is not in dispute that the land in RS no.794/1+2 +3 of Sarwad village measuring about 13 acres 28 guntas was purchased by Malakappa on 13.1.1938 under a registered sale deed. He is said to have died intestate, on 16.5.1942. Mahalingappa and Shivappa, his sons had succeeded to his estate. Let us examine the nature of the right under which they would have held the property.
A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Joint family property is only an adjunct of the joint family.
A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being. In other words, the three generations next to the holder in unbroken male descent.
(Section 6 of the Hindu Succession (Amendment) Act, 2005, has brought a radical change by the inclusion of daughters in the Mithakshara coparcenary.)
But for the purposes of considering the nature of right which Mahalingappa and Shivappa acquired when their father died in the year 1942 and succession opened, the provisions of the HS Act, may not be relevant. In that, the cardinal doctrine of Mithakshara law that property inherited by a Hindu from his father, father s father, or father s father s father is ancestral property in his hands as regards his own male issue (son, grandson and great-grandson) who acquire an interest by birth, has been vitally affected by Section 8 of the HS Act. The said Section propounds a new and definite scheme of succession and lays down rules of succession to the property of a male Hindu who dies intestate, after the commencement of the Act. Section 8 would not apply to the case on hand, for succession opened in the year 1942, before the 1956 Act.
Illustration (a) and (c) on page 360 of Vol.1, Mulla s Hindu Law, Twentieth edition, reads thus:-
(a) Prior to the coming into force of the Hindu Succession Act, 1956, if A who had a son B, inherited property from his father, it became ancestral property in his hands, and B became a coparcener with his father. Though A as head of the family was entitled to hold and manage the property, B was entitled to an equal interest with his father A, and to enjoy it in common with him. B could, therefore, restrain his father from alienating it except in the special cases where such alienation was achieved by law, and he could enforce partition of it against his father. On his father s death, B took the property by right of survivorship and not by succession.
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(c) It would have made no difference in the above illusts (a) and (b), whether the son or sons of A or B as the case may be, were in existence at the time when A or B inherited the property from their respective fathers or were born after the date of such inheritance. The doctrine of ancestral property applies also to such cases.
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1. The conception of a joint Hindu family constituting a coparcenery is that of a common make ancestor with his lineal descendants in the male line within four degrees counting from, and inclusive of, such ancestor (or three degrees exclusive of the ancestor). No coparcenary can commence without a common make ancestor, though after his death, it may consist of collaterals, such as brothers, uncles, nephews, cousins etc.,
(2) A coparcenrary is purely a creature of law; it cannot be created by act of parties, save in so far that by adoption a stranger may be introduced as a member, thereof. (Sudarsanam v. Narasimhulu (1902)25 Mad 149,pp 154-57; Bhagwan Dayal vs. Reoti Devi, AIR 1962 SC 287)
(3) No female can be a coparcener, although a female can be a member of a joint Hindu family. This was the position prior to the amendment of the Hindu Succession in 2005. By virtue of the amendment, the daughters of a coparcener are included as coparceners along with his sons and are recognized as coparceners in their own right. (See: Mulla on Hindu Law Vol.I, Twentieth edition, Page 361-362)
Hence, it can be said that the above said property inherited by Mahalingappa and Shivappa was ancestral property, of the plaintiffs and defendants 2 to 4 and 6 to 9, in their hands. It would have provided sufficient nucleus for the acquisition of other properties. The trial court having held at paragraph 61 of the impugned judgment that unless the nucleus from which income was generated, was demonstrated to exist, the burden of proof would not shift upon defendant no.11, was without reference to the above glaring legal position.
The incidental findings of the trial court that there was no clear evidence of who was the kartha of the joint family, or that there was a division of status of the family by virtue of a declaration made in Form no. 11 before the Land Tribunal, under the provisions of the Karnataka Land Reforms Act, 1961 are irrelevant and are not sustainable. The trial court has negated the evidence of Defendant no.2 on the ground that he had not filed a written statement. But his evidence would certainly support the case of the plaintiffs and other defendants. He had studied upto the fourth standard. He was 24 years of age when the land agreed to be sold by him was purchased. He had no other source of income except from the family properties.
It is also inexplicable that the trial court had no difficulty in accepting that other items of land though standing in the individual name of some of the defendants, could be construed as joint family properties, while singling out only that item of land standing in the name of defendant no. 2 as being his self acquired property.
The Privy Council in Appalaswami v. Suryanarayanamurti, AIR 1947 PC 189, held that the initial burden which lay on the plaintiff of establishing that the properties of which a division was claimed were joint family properties had not been discharged. The law was thus stated in that case:
The Hindu law upon this aspect of the case is well settled. Proof of the existence of a joint family does not lead to the presumption that the property held by any member of the family is joint and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property
The above proposition has been applied and followed in Srinivas Krishnarao Kango v. Narayan Devji Kango, AIR 1954 SC 379, Mallappa Girimallappa Betgeri v. R. Yellappagouda Patil, AIR 1959 SC 906 and in Mudigowda v. Ramachandra, AIR 1969 SC 1076.
In Achutan Nair v. Chinammu Amma, AIR 1966 SC 411, it is held thus:
Under Hindu law, when a property stands in the name of a member of a joint family it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law.
10. Given the above settled position of law, the trial court was not justified in holding that the existence of a joint family nucleus was not established and that the burden was not discharged by the plaintiffs in that regard is an erroneous finding. The burden had shifted on defendant no.11 to establish that the item of land agreed to be purchased by him was the self acquired property of Defendant no.2. That burden has not been discharged. The only issue framed was as to whether Defendant no. 11 had any interest in the subject item of property described in suit Schedule-D.
11. This would take us to the next point for consideration. Whether the plaintiffs and defendants could negate the agreement of sale dated 6.4.1998 said to have been executed by Defendant no.2 in favour of Defendant no.11. It is to be kept in view that Defendant no.2 did not deny the signatures on the agreement of sale. It was sought to be claimed that he had been kidnapped and forced to affix signatures on blank stamp papers, which had been subsequently misused to create the said document. There is no evidence available to sustain any such contention. The document having been prepared shabbily and appearing to be contrived, are besides the point. The said document would be binding and enforceable but only in so far as defendant no. 2 is concerned. For if suit Schedule-D property is also to be held as the joint family property, which in our opinion is the correct position, the said agreement of sale could only apply to the extent of defendant no.2 s share in the said property and would be enforceable as against the said defendant to that extent.
12. As regards the third point framed for consideration, it is not in dispute that there was no partition in the family prior to the coming into force of the Hindu Succession (Amendment) Act, 2005. It is laid down by the Supreme Court in Prakash v. Phulvathi, (2016) 2 SCC 36, that the rights under the amendment are applicable to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. There is a deemed statutory notional partition by operation of law, when succession opens on the death of the father. In the instant case, the father of the plaintiffs and defendants 6 to 9 had died in the year 2007, hence the daughters even if married, would take equally with the sons and would be entitled to an equal share along with the sons in the suit properties.
In the result, the appeals are allowed. The judgment and decree of the court below is set aside.
A preliminary decree shall be drawn up to the effect that the widow of Defendant no.5, who now represents him, shall be entitled to a half share in all the suit properties.
The plaintiffs and defendants 2 to 4 and 6 to 9 shall be entitled to equal shares in the half share of all the suit properties, subject to payment of court fees.
Defendant no. 11 shall be entitled to enforce the agreement of sale dated 6.4.1998 against defendant no.2 to the extent of the latter s share in suit Schedule-D property.
No order as to costs.